NLRB Guidance Finds Cannabis Growers Are Not Covered Under Labor Laws Due to Agricultural Worker Exemption
This week, counsel for the National Labor Relations Board (“NLRB”) issued guidance on whether employees of Agri-Kind, a marijuana enterprise in Pennsylvania, who work in its indoor grow rooms are entitled to protections under the National Labor Relations Act (“NLRA”).FN1 The NLRA grants workers the right to form unions, make collective demands for improved working conditions and prohibits firing employees for exercising rights under the Act.FN2
Two “cultivation associate” employees accused Agri-Kind of violating federal labor laws by firing them in retaliation for attempting to unionize their colleagues.FN3 The NLRB’s Opinion Memorandum concluded that the two employees were “exempt,” and therefore not protected under the NLRA, because they fell under the “agricultural laborer exemption” under the Fair Labor Standards Act (“FLSA”).FN4 The NLRB reasoned that because the cultivation associates spent approximately 70% of their time harvesting, cutting, handing and pruning plants, and worked by hand rather than using machines, they therefore performed “a substantial amount of agricultural functions” as defined by the FLSA.FN5
Finding that the two cultivation associates were exempt agriculture laborers, the NLRB refused to penalize Agri-Kind for terminating their employment because the associates’ unionizing activities were not protected under the NLRA and therefore no violation occurred.
Takeaway
As cannabis business continues to grow across the country, the NLRB’s guidance provides clarity on the classification of workers in the industry. Cannabis employers are encouraged to reach out to the attorneys at Campbell Litigation, P.C. if they have questions regarding the classification or misclassification of their employees.
Footnotes:
FN1: Advice Memorandum, Agri Kind; 04-CA-260089(10-21-20), Agri-Kind, LLC | National Labor Relations Board (nlrb.gov).
FN2: See National Labor Relations Act, 29 U.S.C. §§ 151-169.
FN3: Advice Memorandum, Agri Kind; 04-CA-260089(10-21-20), Agri-Kind, LLC | National Labor Relations Board (nlrb.gov).
FN4: Id.
FN5: Id.; see also 29 U.S.C. § 203(f) (defining “agriculture”).